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TMI Blog2006 (10) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... been challenged by the Department before any appellate forum. Thus, the orders would not only bind the applicant who made the reference but would also bind the State Sales Tax Department which was a party before the Commissioner of Sales Tax. Hence, we must hold that the Tribunal was justified in holding that tool-bits would be taxable under entry 3(ix) of Schedule II, Part A of the Act. In our opinion, the Tribunal was not unjustified in holding that jobber-drills would be worth-nothing unless it is used as part of the machinery. When speed drills or jobber s drills are used with the help of the machinery, then they would become part of the said machinery. It is also to be noted that without the said jobber-drills neither the machine woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(ix) of Schedule II, Part A appended to the Act and "jobber-drills" (drillpana) would be covered by entry No. 16(1) of Schedule II, Part A to the Act read with entry No. 36 of the Government Notification issued under section 49(2) of the Act. The Revenue, being dissatisfied with the said order, made an application for reference, the same was allowed and a reference has been made to this court under section 69 of the Gujarat Sales tax Act, 1969 for its opinion on the following question : "Whether, on the facts and circumstances of the case, the decision of the Gujarat Sales Tax Tribunal dated December 9, 1994 in revision application Nos. 86 and 87 of 1993 is legal and proper when it hold that the sales of 'tool-bits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art A read with entry No. 36 of the Government Notification. He observed that "tool-bits", so also the "jobber-drills" would be covered by entry No. 13 of Schedule III to the Act which relates to articles not specified in any other entry. The learned Commissioner, therefore, issued notice in form 49 and initiated revisional proceedings against the opponent. The assessee-opponent appeared and raised various contentions which were not accepted by the learned Commissioner who revised the order of assessment and held the sale of "tool-bits" and "jobber-drills" to be taxable under entry No. 13 of Schedule III to the Act. The learned Assistant Commissioner accordingly raised demand of Rs. 64,228 (interest a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been classified as machinery for the purpose of entry No. 16 or as tool or alloy and special steel of any of the above categories, then these items would fall in the residuary entry. Opposing the said submission, Mr. Bhatt, learned counsel for the assessee submits that present is not a case where the assessee was paying tax in his own understanding but present is a case where the Department itself, while dealing with two applications submitted under section 62 of the Act, has held that "tool-bits" would fall within entry No. 3(ix) of Schedule II, Part A of the Act. He submits that, so long as the order passed by the Assistant Commissioner holding "tool-bits" to be falling under entry 3(ix) stands, the State or the Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sub-section (1) of section 62 which would be material, reads as under : "Section 62. Determination of disputed questions.--(1) If any question arises, otherwise than in proceedings before a court, or proceedings under section 41 or 44, whether for the purposes of this Act,-- . . . (e) any tax is payable in respect of any particular sale, specified sale or purchase or if tax is payable the rate thereof, the Commissioner shall make an order determining such question." 8. Under the Act, the final authority to determine the dispute is conferred upon the Commissioner or any of his authorised representatives. Such an order would be binding between the parties and if any of the parties are aggrieved by the order, then it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor the driller would be worth any use in absence of its use in the machinery. 10. Entry 36 of the Government notification dated June 20, 1970 issued under section 49(2) says that sales of spare parts and accessories (excluding ball bearing) of machinery which is covered by sub-entry (1) of entry No.16 in Part A of Schedule II would enjoy exemption to the extent to which the amount of sales tax exceeds (3 paise in rupee) and whole of the general sales tax. If "jobber-drill" is taken to be a spare part of the machinery or as an accessory of the machinery, then entry No. 36 which relates to exemption to a particular item would come into play to assist the case in cause of the present assessee. 11. In our opinion, the Tribunal was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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